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537 U.S.


No. 01-10009.

Supreme Court of United States.

October 21, 2002.


Petition for writ of habeas corpus denied.
GINSBURG, and JUSTICE BREYER join, dissenting.
Petitioner has filed an application for an original writ of habeas corpus
asking us to hold that his execution would be unconstitutional because he
was under the age of 18 when he committed his offense. A bare majority
of the Court rejected that submission 13 years ago. Stanford v. Kentucky,
492 U. S. 361 (1989). There are no valid procedural objections to our
reconsideration of the issue now, and, given our recent decision in Atkins
v. Virginia, 536 U. S. 304 (2002), we certainly should do so.
In Atkins, we held that the Constitution prohibits the application of the
death penalty to mentally retarded persons. The reasons supporting that
holding, with one exception, apply with equal or greater force to the
execution of juvenile offenders. The exceptionthe number of States
expressly forbidding the execution of juvenile offenders (28) is slightly
fewer than the number forbidding the execution of the mentally retarded
(30)does not justify disparate treatment of the two classes. Indeed, the
fact that since 1989, state legislatures in Indiana,1 Montana,2 New York,3
and Kansas,4 and the Supreme Court of the State of Washington5 have all
forbidden the execution of persons who were under 18 at the time of their
offenses minimizes the significance of that exception.
Rather than repeating the reasoning in our opinion in Atkins, I think it
appropriate to quote the following comments from Justice Brennan's
dissenting opinion in Stanford v. Kentucky, 492 U. S., at 394-396, which I
joined in 1989:

"Proportionality analysis requires that we compare `the gravity of the offense,'

understood to include not only the injury caused, but also the defendant's
culpability, with `the harshness of the penalty.' Solem [v. Helm, 463 U. S. 277,
292 (1983)]. In my view, juveniles so generally lack the degree of
responsibility for their crimes that is a predicate for the constitutional
imposition of the death penalty that the Eighth Amendment forbids that they
receive that punishment.

"Legislative determinations distinguishing juveniles from adults abound. These

age-based classifications reveal much about how our society regards juveniles
as a class, and about societal beliefs regarding adolescent levels of
responsibility. See Thompson [v. Oklahoma, 487 U. S. 815, 823-825 (1988)
(plurality opinion)].

"The participation of juveniles in a substantial number of activities open to

adults is either barred completely or significantly restricted by legislation. All
States but two have a uniform age of majority, and have set that age at 18 or
above.... No State has lowered its voting age below 18.... Nor does any State
permit a person under 18 to serve on a jury.... Only four States ever permit
persons below 18 to marry without parental consent.... Thirty-seven States have
specific enactments requiring that a patient have attained 18 before she may
validly consent to medical treatment. . . . Thirty-four States require parental
consent before a person below 18 may drive a motor car.... Legislation in 42
States prohibits those under 18 from purchasing pornographic materials....
Where gambling is legal, adolescents under 18 are generally not permitted to
participate in it, in some or all of its forms. . . . In these and a host of other
ways, minors are treated differently from adults in our laws, which reflects the
simple truth derived from communal experience that juveniles as a class have
not the level of maturation and responsibility that we presume in adults and
consider desirable for full participation in the rights and duties of modern life.

"`The reasons why juveniles are not trusted with the privileges and
responsibilities of an adult also explain why their irresponsible conduct is not
as morally reprehensible as that of an adult.' Thompson, supra, at 835 (plurality
opinion). Adolescents `are more vulnerable, more impulsive, and less selfdisciplined than adults,' and are without the same `capacity to control their
conduct and to think in long-range terms.' Twentieth Century Fund Task Force
on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7
(1978) (hereafter Task Force). They are particularly impressionable and subject
to peer pressure, see Eddings v. Oklahoma, 455 U. S. 104, 115 (1982), and
prone to `experiment, risk-taking and bravado,' Task Force 3. They lack
`experience, perspective, and judgment.' Bellotti v. Baird, 443 U. S. 622, 635

(1979). See generally Thompson, supra, at 835-836, n. 43; Brief for American
Society for Adolescent Psychiatry et al. as Amici Curiae (reviewing scientific
evidence). Moreover, the very paternalism that our society shows toward
youths and the dependency it forces upon them mean that society bears a
responsibility for the actions of juveniles that it does not for the actions of
adults who are at least theoretically free to make their own choices: `youth
crime ... is not exclusively the offender's fault; offenses by the young represent
a failure of family, school, and the social system, which share responsibility for
the development of America's youth.' Task Force 7.

"To be sure, the development of cognitive and reasoning abilities and of

empathy, the acquisition of experience upon which these abilities operate and
upon which the capacity to make sound value judgments depends, and in
general the process of maturation into a self-directed individual fully
responsible for his or her actions, occur by degrees. See, e. g., G. Manaster,
Adolescent Development and the Life Tasks (1977). But the factors discussed
above indicate that 18 is the dividing line that society has generally drawn, the
point at which it is thought reasonable to assume that persons have an ability to
make, and a duty to bear responsibility for their, judgments. Insofar as age 18 is
a necessarily arbitrary social choice as a point at which to acknowledge a
person's maturity and responsibility, given the different developmental rates of
individuals, it is in fact `a conservative estimate of the dividing line between
adolescence and adulthood. Many of the psychological and emotional changes
that an adolescent experiences in maturing do not actually occur until the early
20s.' Brief for American Society for Adolescent Psychiatry et al. as Amici
Curiae 4 (citing social scientific studies)."

Today, Justice Brennan's observations are just as forceful and correct as they
were in 1989. But even if we were not convinced in 1989, we should be all the
more convinced today. Indeed, when determining what legal obligations and
responsibilities juveniles will be allowed to take on, the trend tends to require
individuals to be older, rather than younger. See, e. g., National Survey of State
Laws 418-422, 478-488 (R. Leiter ed., 4th ed. 2003) (reporting that, without
exception, all States now require one to be at least 18 in order to marry without
parental consent and that all States now require one to be at least 18 to be the
age of majority if unmarried). Neuroscientific evidence of the last few years has
revealed that adolescent brains are not fully developed, which often leads to
erratic behaviors and thought processes in that age group. See Supplemental
Brief for Petitioner 3-5. Scientific advances such as the use of functional
magnetic resonance imaging MRI scans have provided valuable data that
serve to make the case even stronger that adolescents "`are more vulnerable,
more impulsive, and less self-disciplined than adults.'" Stanford, 492 U. S., at


Moreover, in the last 13 years, a national consensus has developed that juvenile
offenders should not be executed. No State has lowered the age of eligibility to
either 16 or 17 since our decision in 1989. See V. Streib, The Juvenile Death
Penalty Today: Death Sentences and Executions for Juvenile Crimes, January
1, 1973September 30, 2002, p. 7 (updated Oct. 9, 2002), (available in Clerk of
Court's case file). In fact, as I mentioned above, the movement is in exactly the
opposite direction. Although it is clear that the treatment of this issue by the
legislatures has led to a trend in only one directiontoward abolition of the
death penalty for juvenile offendersthe fact that the legislatures are paying
attention to this issue is remarkable. Juvenile offenders make up only 2% of the
total population of death row and about that same percentage of the executions
that are carried out. See id., at 13, 4. As a result of such small numbers, one
might expect that this issue would draw little public attention and even less
interest from the state legislatures. But the legislatures have acted, and those
actions are uniformly against the execution of those who were under 18 when
they committed their offenses. This uniform treatment makes sense, too, when
one considers its consistency with widely held views on the subject: The
majority of Americans, when asked in 2001, indicated that juvenile offenders
should not be eligible for the death penalty. See, e. g., T. Smith, Public Opinion
on the Death Penalty for Youths, National Opinion Research Center, Univ. of
Chicago 2, 6 (Dec. 2001) (unpublished manuscript) (available in Clerk of
Court's case file).

All of this leads me to conclude that offenses committed by juveniles under the
age of 18 do not merit the death penalty. The practice of executing such
offenders is a relic of the past and is inconsistent with evolving standards of
decency in a civilized society. We should put an end to this shameful practice.

I would set the application for an original writ for argument and respectfully
dissent from the Court's refusal to do so.


See Ind. Code Ann. 35-50-2-3, 3(b)(1)(A) (West Supp. 2002); 2002 Ind.
Pub. L. 117-2002, 1

See Mont. Code Ann. 45-5-102(2) (1997); 1999 Mont. Laws, ch. 523

See N. Y. Penal Law 125.27 (West Supp. 2002)

See Kan. Stat. Ann. 21-4622 (1995)

SeeState v. Furman, 122 Wash. 2d 440, 459, 858 P. 2d 1092, 1103 (1993).